P L D 2017 Peshawar 47 (PLP)

MAZHAR ALAM KHAN MIANKHEL, C J.--The petitioner, Aizaz-ul-Mulk, through the instant writ petition, has questioned the legality and propriety of the impugned order dated 02.06.2015 passed by the Election Commission of Pakistan on a suo motu notice whereby by-election of Constituency. No. PK-95 Lower Dir-II held on 7.5.2015 was declared void for the reason of disenfranchisement of female voters. The Notification of petitioner (the returned candidate) was not issued and new election schedule was ordered to be announced in due course in accordance with law.

2. The writ petition when came up for hearing before this Court, the same was admitted for regular hearing and in the interim relief operation of the impugned notification qua announcement of subsequent schedule was suspended.

3. Today, learned counsel for both the parties argued the case at length in the light of Articles 218 and 225 of the Constitution of Islamic Republic of Pakistan, 1973 "The Constitution" read with Sections 103, 103AA, 67 and 70 of the Representation of the People Act, 1976 "ROPA". The learned counsel for respondent also vehemently questioned the territorial jurisdiction of this Court to entertain the present writ petition, as, according to him, the whole proceedings were conducted by the Election Commission of Pakistan at Islamabad and the proper Court for filing of the instant writ petition was the Islamabad High Court.

4. First of all, we would like to answer the question of territorial jurisdiction of this Court in the matter. A similar question was raised before the Hon'ble Apex Court in the case of Lt.-Gen. (R.) Salahuddin Tirmizi v. Election Commission of Pakistan (PLD 2008 Supreme Court 735). Briefly stated, the facts of the above case were that after the general election for the seat of National Assembly from Constituency NA-20, Mansehra-I, the runner-up candidate had filed an undated application to the Election of Commission of Pakistan that due to abnormal situation at some polling stations, the polling was stopped.The Election Commission of Pakistan dismissed the application, whereafter a constitutional petition was filed before the Hon'ble Islamabad High Court. In the said writ petition, the petitioner/candidate also included Polling Station 244 with the prayer that in both the polling stations, re-poll should be ordered. The Islamabad High Court remanded the case to the Election Commission of Pakistan to decide as to whether a case is made out under Section 103-AA of ROPA. After remand, the Election Commission allowed the application and in exercise of powers under section 103-AA of ROPA directed for re-poll at polling Stations Nos.219 and 244 of the Constituency. The said judgment/order was assailed by the returned candidate in a writ petition before a learned Bench of this Court at Abbottabad but the writ petition was dismissed and the matter was agitated before the august Supreme Court of Pakistan, wherein the question of jurisdiction of the two High Courts was also raised. The august Supreme Court of Pakistan, on the point of jurisdiction, held as under:- "It may be pointed out that in the light of principle laid down by this Court regarding the exercise of jurisdiction in such situation, the order passed by the Election Commission of Pakistan which functions at Islamabad in respect of the constituency of Province of N.-W.F.P., would be challengeable both before the Islamabad High Court and Peshawar High Court. This concurrent jurisdiction is, however, subject to the rule of propriety according to which a High Court having jurisdiction in a matter if has exercise such jurisdiction, the other High Court which has also jurisdiction in the matter may restrain from exercising its jurisdiction." It is evident from the available record that none of the parties have challenged the decision of the Election Commission of Pakistan before the Islamabad High Court and, therefore, this Court is competent to entertain the present writ petition in view of the above dictum laid down by the august Supreme Court of Pakistan. It may be mentioned here that the allegation with regard to Polling Station No.219 in the above referred judgment was that a large number of female voters were gathered at the polling station since morning, but the female polling staff could not reach the polling station due to its situation in remote and far flung areas. The august Supreme Court of Pakistan found that the Election Commission did not give equal treatment to the petitioner in the matter relating to his complaint that at certain polling station women voters had not been able to exercise their right of franchise and that written complaint dated 29.02.2008 lodged by male and female voters of Polling Stations Nos.1, 2, 3, 5 and 5 of Kaghan Area wherein the grievance voiced was that due to land slide and blockade of roads they could not exercise their right of franchise. The Election Commission of Pakistan was, therefore, directed to consider the said aspects of the case in exercise of powers under section 103-AA of Representation of the People Act, 1976, after hearing the parties at its convenience.

5. While reverting back to facts and circumstances of case in hand, we, before further dilating on merits, deem it proper to reproduce the relevant portions of the impugned judgment/order of the Election Commission of Pakistan for the sake of convenience:- "By-election on Constituency No. PK-95 Lower Dir-II, KPK was conducted on 7th May, 2015. Soon after the poll various reports started appearing on electronic media and subsequently on print media as well, that female voters in the entire Constituency failed to exercise their right of vote. It is a matter of grave concern that a large segment of society got deprived of their fundamental as well as Constitutional right.... According to District Returning Officer/Regional Election Commission, Mardan, all arrangements were made but no female voter came out for casting vote and that no complaint was received by him on behalf of any party or individual. Similar was the report of Additional Secretary, (Law and Order) which said that no woman voter turned up to cast vote in any of the 85 polling station. The Senate of Pakistan, 18th May 2015 passed a resolution strongly condemning the barring of women from casting their votes and declaring it to be a blatant violation of the Constitution and basic human rights. The Commission agrees with the stance so taken. Any evidence under the law is adduced to prove some fact in positive but the criteria of the nature of evidence loses its significance when the fact alleged to be proved is admitted..........Thus we observe that when fact in question is admitted, it is immaterial whether the evidence is primary or hearsay. ... The next question that falls for determination is, as to whether they were restrained by the contesting candidates. This may be cleared to all that the Commission, for the moment, is more interested in the disenfranchisement of female voters rather than who specifically is the person having used undue influence. There are only two possibilities before us. Either the female voters abstained from casting their votes of their own free will or they were influenced by external forces, who so ever they might have been. ......The strong and irrefutable presumption is that the male population had agreed to deprive the female population. It becomes immaterial for the present proceedings as to who did it. If we had such specific evidence, we would have launched criminal proceedings against the culprits involved......... We would not be wasting time over authorities which were produced on the points of hear-say evidence and also on the points relevant to the question of adversarial proceedings because we have already held that the hearsay is not relevant and adversarial proceedings, the instant one are not." From the above, it is evident that neither there was any plausible evidence before the Election Commission of Pakistan to form a proper opinion in a summary proceedings that the election in the Constituency was not held, fairly, justly, honestly and in accordance with law nor any contesting candidate had made a complaint or any male or female voter had come forward with such an allegation. The opinion of the learned Election Commission of Pakistan is thus based on the fact that zero rating of female votes itself is a deducible fact that they were restrained from casting their votes by the male society. A look at the statements of witnesses recorded by the Election Commission in support of the suo motu notice would reveal that either they were not voters of the said Constituency or they had not visited the Constituency on the day of election to poll their votes. Notices were also issued to all the contesting candidates but no statement of any candidate was recorded although the returned candidate submitted his reply in writing wherein he denied the allegation that under the influence of elders or any other contesting candidate, the female voters were restrained not to cast their votes. He has further stated that it was the practice for the last nine general elections held in the country that female voters had not cast their votes in this constituency. The reason behind non-casting of female votes was stated to be the ongoing operation in the area as well as the history, culture and tradition of the people of the locality. It is further a matter of record, that no one from the constituency, be that the males, females or for that matter even the interested contesting candidates, had made any written complaint to the Election Commission either on the day of election or thereafter regarding the alleged disenfranchisement of the female voters. The Returning Officer, District Returning Officer, and Additional Secretary (Law and Order) KPK have also submitted their written replies. The District Returning Officer in his reply has stated that total 85 polling stations were established for bye-election in constituency No.PK-95, Lower Dir-II. Free and convenient access for male and female voters was ensured. No party or individual sent any complaint about the alleged agreement of restrictions on female voters. A smooth, free fair and transparent election in the area was conducted and no any mishap was either reported or noticed during the election process. The Returning Officer in his reply has stated that being aware of the past practice where the political parties entered into agreement from restraining their women folk to exercise their right of franchise, special efforts were made that such undemocratic practice is not repeated. In this context a meeting of the representatives of all main political parties was called prior to polling day on 24.04.2015 in the Deputy Commissioner's office. Besides other issues discussed, it was emphasized on all political parties in the meeting that barring women from exercising their right to cast their votes was against the electoral laws and would invite strict action against the violators and that on his part all arrangements for female voting had been made. He has further stated that it is his firm belief that nobody had blocked their entry into the polling stations and that the women did not come out of their homes out of their own free will. From the above, it is evident that all the arrangements were made by the Election Commission of Pakistan on the day of election for casting votes by the female voters by providing proper staff and place. No person including any voters of the area made any complaint either on the day of election or thereafter to the election staff or the Election Commission of Pakistan. Nothing is available on file to show that the female voters were restrained either by the elders of' the locality or male voters of the Constituency. If this is the situation the question would arise as to whether there is any provision in the ROPA that the election staff would at all cost compel a voter, whether male or female, to come to the Polling Station and cast his/her vote. The answer would be NO. As per available record the total number of male registered voters in the Constituency was 86,926 out of which only 38,590 voters had cast their votes and 48,336 voters did not cast their votes. Can it be said that such a large number of voters were restrained or compelled by someone not to cast their votes. Undoubtedly, not a single female had cast her vote but the law of the land does not provide any such compulsion and this alone would not be sufficient to annul the entire election as void, when by doing so, it would tantamount to the disenfranchisement of 38,590 voters who had already exercised their right of franchise. We fully agree that it is not a good practice and we are also not happy with this situation but in absence of any such law/penal provision, we do not think that the entire election can be annulled and declared void when there is not a single instance before us that a female went to cast her vote and she was stopped by someone. Besides, the machinery of Election Commission remained present there throughout the Election Day. We don't think that mere intervention of unconcerned persons in the circumstances would be sufficient to declare the entire election void.; To us, and that's true that this is the choice of a voter whether he/she casts his/her vote or not and no punitive law is in the field to compel such a voter to cast his/her vote by all means. It would not be out of place to reproduce here the verdict of the august Supreme Court of Pakistan on this point rendered in the case of Dravesh Khan v. Muhammad Sher Khan and others (1986 SCMR 352); which is to the following effect:- "R. 32--Constitution of Pakistan (1973), Arts. 199 & 185(3)--Election

Respondent challenged election of appellant on ground that women voters were prevented from casting their votes as a result of illegal agreement between all contesting candidates-Common grounds existed between parties that all contesting candidates including respondent had voluntarily entered into an agreement that no female votes would be cast at election

It was not case of respondent that any female voter who intended to exercise her right of vote was denied by authorities responsible for conduct of election-Presiding Officer categorically stating that necessary arrangements were made for casting votes by female candidates and that contesting candidates had informed him that they had agreed not to bring any female voter

Held, Respondent having himself created a situation (whereby no female vote was cast) could not be allowed to make a grievance of same fact in support of his challenge to election before Election Tribunal

Such fact also disentitled him equitable remedy in Constitutional jurisdiction before High Court which he had invoked to his advantage and his Constitutional petition was liable to be dismissed on this ground

Writ issued by High Court, whereby appellant's election was set aside with a direction for holding a fresh election, recalled. Although in the case of Dr. Raja Aamer Zaman v. Omar Ayub Khan and others, (2015 SCMR 1303) the matter before the apex Court was a review petition in Civil Appeal No.31 of 2014 against the decision of an Election Tribunal but their lordships of the august Supreme Court of Pakistan have considered both the aspects of the case i.e. the power of the Election Tribunal under Section 70 of the ROPA to declare the election as a whole void and powers of the Election Commission under Section 103AA. With regard to the powers under Sections 103 and 103AA of the Act, it was held that:- "Moreover, when the provisions of Sections 103 and 103AA are examined, it becomes abundantly clear that the Commission has been granted administrative and policing functions for the purpose of conducting elections honestly, fairly, justly and in accordance with law. Their administrative powers are not judicial in nature and are exercisable without any deep probe of facts as may be ascertainable on "the face of the record" or after a "summary inquiry" if deemed necessary by the Commission... ... .The powers of the Election Tribunal on the other hand are based on Article 225 of the Constitution and are of a judicial and adjudicatory nature subject only to an appeal, in accordance with the provisions of ROPA and the rules. ..........The words "as a whole" do not appear in sections 103 and 103 AA and as such there is no justification for treating these provisions as being in pari materia with sections 67 and 70 of ROPA...... It was clear on the facts of the cited case that in exercise of powers under sections 103 and 103 AA of ROPA, the Election Commission was well within its jurisdiction to direct a re-poll only at 17 disputed polling stations." In view of the above dictum laid down by the august Supreme Court of Pakistan, we are clear in our mind that the Election Commission under Section 103AA of ROPA can declare the election of a Constituency as void and can also ask for re-poll in some of the Polling Stations, but in the present case, the said power has been exercised on a hearsay evidence without any positive evidence to the effect that either the polling arrangements were not made in the Constituency or the contesting candidates/elders of the locality barred the females from casting their votes. Thus only on the basis of presumptions, re-poll cannot be ordered, when otherwise it appears that the election was conducted in the constituency in a fair and transparent manner. In view of the above discussion, this writ petition is allowed. The impugned order dated 02.06.2015 and the new election Schedule vide Notification No. F.8(6)/2015-Cord (1) dated 05.06.2015 of the Election Commission of Pakistan are hereby declared to have been passed/issued in excess of lawful authority and jurisdiction, hence set aside with the direction to the respondents that notification of the petitioner as returned candidate from Constituency No.PK-95 Lower Dir-II be issued as per mandate of Section 42(4) of the Representation of the People Act, 1976. ZC/149/P Petition allowed.